A California student has been arrested for modding gaming consoles to run " …

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For anyone with a little bit of technical know-how, modifying video game systems for various purposes is easy... and can even make you a little bit of money. The problem? Modifying the firmware in video game systems to play pirated games or even your own backups is illegal. Twenty-seven-year-old Matthew Lloyd Crippen learned the hard way that Immigration and Customs Enforcement doesn't have a sense of humor about modding systems for profit: the student was arrested after being indicted on two charges of violating the Digital Millennium Copyright Act for selling modded systems. The question some gamers are now asking themselves: am I breaking the law? The answer is not comforting.

For Crippen, each charge carries a maximum penalty of five years in jail, so there is a possibility that Crippen could be staring down the barrel of ten years imprisonment. Crippen was charging a around $30 per job, and the authorities seized around a dozen hacked consoles. "This if for your legally made backups," he claimed when talking to Threat Level. "If you're talking about piracy, I'm not helping you out." The law doesn't agree, especially since he was aware of the ability to play pirated games on his hacked systems, and profited—even in such a limited way—from his work.

While running a business selling modded consoles is a bad idea, what's your risk factor when modding your own console? Crippen may not have understood the laws he was breaking, but is it possible your own weekend console tweaking has put you on the wrong side of the law? We decided to find out.

What rights do you have when modding your console?

Ars spoke to Jennifer Granick, the Civil Liberties Director of the Electronic Freedom Foundation to find out. The news was bad. "With hardware, you can do pretty much anything you want with it. There are very few rules that apply. You buy it, you own, you can take it apart, and that's perfectly fine," she explained. The problem is that no one simply modifies the hardware. "It becomes complicated with modern hardware because it's combined with firmware, the embedded software."

The infamous DMCA states that you can't circumvent any software protection to get at the copyrighted work it protects. If you're using a software exploit or installing a mod chip, you're disabling that protection to allow yourself to run homebrew code, and you're running afoul of the DMCA. "Thou shall not circumvent," Granick told Ars, counting the two ways to break the law. "And thou shall not provide tools to others.

The intent is meaningless. Even if you simply want to modify an Xbox to use as a media center, you're breaking the law, since you've given the system the ability to run unsigned code.

Are you at risk for prosecution?

If you've simply modified a console, it's a civil matter. For criminal charges to be brought against you, you had to have willfully and purposefully modded the systems to play pirated games, and profited from the work. "Individual users who want to create a media center may well be violating the law, but as a practical matter, it's very unlikely that anyone will want to come after them," Granick explained. "It's the people that provide the tools, particularly for commercial practices, who can attract the unwanted attention."

You also need to be careful about that second bit up there. If you come up with a slick way to crack a console and upload the tools onto a website, even with the most benign of intentions, you are making yourself a target for prosecution. If you want to have fun with modding your system, don't share your tools—your risk will be greatly minimized. "It's very, very unlikely that any of these companies are going to bring civil suits against individual people who modded their own consoles. Economically, it's not worth it," Granick told us. The statutory damages for that sort of violation would be between $200 and $2,500, making legal action uneconomical. If you're not willfully and purposefully circumventing the protections for profit, your infraction is civil, not criminal.

Granick stressed that it's still a bad idea to break the law, and it has to be pointed out that limited risk doesn't equal no risk: if you violate the DMCA, you can be punished for it. Still, the DMCA law makes it hard—if not impossible— for weekend tinkerers and coders to stay legal. "It's unfortunate that taking this hardware that you own and creating something like a media center, which is a noninfringing activity, has this legal shadow over it," she told Ars.

The ESA has less of a sense of humor about modified hardware

Ars Technica also contacted the Entertainment Software Association for their thoughts on the matter. Surely there is room for consumers to modify the systems they buy if they don't pirate, right?

"The technological measures that video game companies use to control or manage access to their works and to prevent unauthorized copying are essential to ensuring the viability of a vibrant video game marketplace," Ken Doroshow, ESA General Counsel & Senior Vice President, told Ars. "These technological measures protect the intellectual property rights on which video game companies depend to create and publish new games."

The ESA's view is that you can't mess with your systems, no matter how benign your intention. "Circumventing these protections is never 'harmless fun,' as it erodes the foundation on which video game industry depends for its success."

The DMCA is not anything you want to mess with, and Crippen's case proves that the authorities will get involved in even small operations if tipped off; it's simply not worth the risk to sell modified game consoles or the tools to do so.

The problem is the broad nature of the DMCA makes any hack or exploit effectively illegal, even if it increases the features of the hardware without leading to piracy, or gives you the ability to do things that would normally be covered under fair use. That PSP you've cracked to play emulated NES games puts you on the wrong side of the law, no matter how unlikely the negative consequences may be.